Mullery v. M'Cann
| Decision Date | 18 June 1888 |
| Citation | 95 Mo. 579,8 S.W. 774 |
| Parties | MULLERY v. McCANN. |
| Court | Missouri Supreme Court |
By Rev. St. Mo. § 2810, no person is eligible to the office of justice of the peace who shall not have been an inhabitant of the township for which he is chosen six months before his election. Section 2805 divides the city of St. Louis into districts for the election of justices of the peace. By section 2806 a justice elected under section 2805 shall hold his court in the district for which he is elected, and, if he removes his office out of the district, his office shall be deemed vacated. Section 3065 provides that the powers and jurisdiction given by that chapter to county or township officers are also given to the like officers in any city not within a county, or any district in such city. Held that, to be eligible to the office of justice of the peace of a district in St. Louis, a person must have been a resident of such district six months before his appointment or election.
Appeal from St. Louis circuit court; ELMER B. ADAMS, Judge.
Transferred from St. Louis court of appeals.
John M. Holmes and E. A. B. Garesche, for appellant. John J. McCann, for respondent.
This suit was brought in the circuit court of the city of St. Louis to recover the fees received by defendant while acting as a justice of the peace in the Fifth district in said city from November, 1880, till November, 1882. Defendant obtained judgment on the trial, from which the plaintiff has appealed. The record discloses the following state of facts: That, a vacancy having occurred in the office of justice of the peace for the Fifth district in the city of St. Louis, plaintiff Mullery was appointed to fill it by the mayor of said city in October, 1879; that said Mullery, at the time of said appointment, and for two or three years previous thereto, lived with his family in the Seventh district in said city; that after his said appointment he opened and kept an office at No. 623 Chestnut street, in said Fifth district; that in November, 1880, defendant was elected a justice of the peace in and for said district, and thereafter plaintiff delivered to defendant such records as he had pertaining to said office, and sold out his office effects, furniture, sign, etc., a part of them being sold to defendant; that plaintiff thereafter, in December, 1880, went to work for Justice Monahan in the Sixth district, and in the month of January, 1881, contracted to work for said Monahan in said district at a monthly salary, and continued to work under said contract till November, 1882; that defendant opened an office as justice of the peace in said Fifth district in November, 1880, and acted as such justice till November, 1882, receiving the fees incident to the office during that time; that in June, 1881, quo warranto proceedings were instituted by the state to oust defendant from said office of justice of the peace as an intruder, which resulted in a judgment of ouster, the case in which this judgment was rendered being reported in 81 Mo. 479, where it is held that defendant acquired no title to said office under the election held in 1880. After the rendition of this opinion, the mayor, acting upon the belief that there was a vacancy in the said office, appointed defendant to fill it; and thereupon another proceeding by quo warranto was instituted by the state at the relation of the prosecuting attorney to oust defendant, which culminated in a judgment of ouster; the case being reported in 88 Mo. 386. While in these cases it is held that defendant had no title to said office, they do not establish plaintiff's title. During the pendency of this proceeding, plaintiff remained in the employment of said Monahan under his contract, and brings this suit to recover the fees collected by defendant as said justice from November, 1880, to November, 1882.
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